Marlett v. Berkholtz ( 2021 )

1 2 3 4 5 UNITED STATES DISTRICT COURT 6 WESTERN DISTRICT OF WASHINGTON AT SEATTLE 7 8 DUSTIN MARLETT, 9 Plaintiff, Case No. C21-787-SKV 10 v. ORDER RE: MOTION FOR ORDER AUTHORIZING SERVICE BY 11 KARIN BERKHOLTZ, etc., PUBLICATION 12 Defendants. 13 14 INTRODUCTION 15 Plaintiff Dustin Marlett filed a Motion for Order Authorizing Service by Publication on 16 Defendant Ric Berkholtz. Dkt. 11. Having considered the motion, supporting declarations, and 17 the remainder of the record, the Court herein GRANTS Plaintiff’s motion. 18 BACKGROUND 19 On June 10, 2021, Plaintiff filed this action alleging fraud and unjust enrichment by 20 Karin Berkholtz and her son Ric Berkholtz. See Dkt. 1. A process server engaged by Plaintiff’s 21 counsel successfully served Karin Berkholtz on June 16, 2021, at 3619 Sussex Place, 22 Minnetonka, MN (the “Minnesota Address”), an address provided to counsel by Plaintiff. Dkts. 23 8-9; Dkt. 11-1, ¶ 7. 1 Counsel for Plaintiff also engaged a process server in Washington to serve Ric Berkholtz. 2 Through information provided by Plaintiff as a result of his business dealings with Defendants 3 and additional research, counsel learned Mr. Berkholtz attended the University of Washington 4 School of Law in the spring of 2021 and resided in graduate student housing at 3927 Adams 5 Lane NE, Apartment 404, Seattle, Washington 98105 (the “Adams Lane Apartment”). Dkt. 11- 6 1, ¶¶ 3-4. Process server Timofey Samoylenko thereafter unsuccessfully attempted service on 7 Mr. Berkholtz at the Adams Lane Apartment on nine separate occasions between June 14th and 8 July 9th of 2021. Dkt. 11-2, ¶ 2. In his last attempt, Mr. Samoylenko gained access to the 9 apartment, which was dark, quiet, and with no sign of anyone inside, and was told by a neighbor 10 Mr. Berkholtz no longer lived at that address. 11 An investigation conducted by Mr. Samoylenko revealed the identification of the 12 Minnesota Address and 3902 San Mar Drive NE, Olympia, Washington 98506 (the “Olympia 13 Address”) as last known addresses for Mr. Berkholtz. Id. Mr. Samoylenko also learned, among 14 other things, that Mr. Berkholtz used the Olympia Address to register to vote in Washington and 15 the most current phone number for Mr. Berkholtz, as of October 2016 and with a Minnesota area 16 code. Id. Mr. Samoylenko left a voice mail at the phone number on July 2, 2021 and 17 unsuccessfully attempted service at the Olympia Address four times between June 30th and July 18 7th of 2021. Id. On the last attempt, a resident stated Karin Berkholtz previously rented a room, 19 but that Ric Berkholtz never resided at that address. Dkt. 11-1, ¶ 6; Dkt. 11-2, ¶ 2. Consistent 20 with the resident’s report, Plaintiff had informed counsel Ms. Berkholtz resided at the Olympia 21 Address before relocating to Minnesota. Dkt. 11-1, ¶ 6. 22 On August 11, 2021, counsel for Plaintiff mailed copies of the summons and complaint to 23 Mr. Berkholtz at all three last known addresses. Id., ¶ 8. Counsel also obtained an email address 1 previously used by Plaintiff to correspond with Mr. Berkholtz: ricberk@gmail.com. Id., ¶ 9. 2 Plaintiff now seeks an order authorizing service on Mr. Berkholtz by publication. 3 DISCUSSION 4 A plaintiff may serve an individual by leaving a copy of the summons and complaint with 5 the individual personally, with someone of suitable age and discretion at the individual’s home, 6 or with an authorized agent. Fed. R. Civ. P. 4(e)(2). A plaintiff may also effect service by 7 “following state law for serving a summons in an action brought in the courts of general 8 jurisdiction in the state where the district court is located or where service is made.” Fed. R. Civ. 9 P. 4(e)(1). 10 Washington allows for service by publication in certain limited circumstances. See RCW 11 § 4.28.100. As relevant to this case, to serve a resident defendant by publication, a plaintiff must 12 mail a copy of the summons and complaint to the defendant’s residence and file an affidavit with 13 the Court attesting: (1) the defendant cannot be found in the state; (2) plaintiff mailed a copy of 14 the summons and complaint to defendant’s residence; and (3) defendant has either left the state 15 or kept himself or herself concealed to avoid service or defraud creditors. RCW § 4.28.100(2).1 16 Service by publication or mail is “in derogation of the common law” and disallowed 17 when personal service is possible. Rodriguez v. James-Jackson, 127 Wn. App. 139, 143, 111 18 P.3d 271 (2005). Strict compliance with the authorizing statute is required. Id. Courts require a 19 20 1 See RCW 4.28.100(2) (“When the defendant cannot be found within the state, and upon the filing of an affidavit of the plaintiff, his or her agent, or attorney, with the clerk of the court, stating that 21 he or she believes that the defendant is not a resident of the state, or cannot be found therein, and that he or she has deposited a copy of the summons . . . and complaint in the post office, directed to the defendant 22 at his or her place of residence, unless it is stated in the affidavit that such residence is not known to the affiant, and stating the existence of one of the cases hereinafter specified, the service may be made by 23 publication of the summons, by the plaintiff or his or her attorney . . . [] [w]hen the defendant, being a resident of this state, has departed therefrom with intent to defraud his or her creditors, or to avoid the service of a summons, or keeps himself or herself concealed therein with like intent[.]”) 1 plaintiff to have made an “honest and reasonable effort” to find a defendant and “reasonably 2 diligent efforts” to effect personal service. Id.; Boes v. Bisiar, 122 Wn. App. 569, 574-75, 94 3 P.3d 975 (2004). A plaintiff need not employ all conceivable means of personal service before 4 seeking service by publication, but must follow up on information possessed that might 5 reasonably assist in determining the defendant’s location. Carson v. Northstar Dev. Co., 62 Wn. 6 App. 310, 316, 814 P.2d 217 (1991). 7 Conclusory allegations of the statutory factors do not suffice to warrant service by 8 publication. Charboneau Excavating, Inc. v. Turnipseed, 118 Wn. App. 358, 362, 75 P.3d 1011 9 (2003). A plaintiff must produce facts supporting the conclusions required by the statute. Id. 10 (citations omitted). Accord Pascua v. Heil, 126 Wn. App. 520, 527, 108 P.3d 1253 (2005) (“A 11 bare recitation of the statutory factors required to obtain jurisdiction is insufficient; the plaintiff 12 must produce the specific facts which support the conclusions required by [RCW 4.28.100(2)].”). 13 Plaintiff here seeks authorization to effect service by publication. He must, accordingly, 14 produce facts showing (1) his reasonably diligent efforts to personally serve Defendant and (2) 15 that Defendant, with the intent to defraud or avoid service, has either left the state or concealed 16 himself within. Charboneau Excavating, Inc., 118 Wn. App. at 362 (cited cases omitted). See 17 also Lumico Life Ins. Co. v. Adams, C20-5515-MLP, 2021 WL 22587, at *3 (W.D. Wash. Jan. 4, 18 2021) (plaintiff failed to provide facts clearly demonstrating defendant was a Washington 19 resident or departed the state or concealed himself within with the intent to defraud or avoid 20 service and, instead, merely demonstrated it could not locate defendant based on available 21 information; rejecting suggestion service by publication is warranted based on reasonable efforts 22 to locate alone) (citing, inter alia, Pascua, 108 P.3d at 1259-61 (finding service by publication 23 improperly authorized where plaintiff failed to engage in reasonable efforts to locate defendant 1 or to establish the evasion requirements), and Boes, 94 P.3d at 980 (authorizing service by 2 publication where affidavits showed diligence in attempted service and supported an inference of 3 evasion where defendant left the state during the final ten days remaining under the applicable 4 statute of limitations)); Canal Ins. Co. v. Mengeste, C18-1833-RAJ, 2019 WL 2491951, at *2 5 (W.D. Wash. June 14, 2019) (declaration insufficiently asserted defendant left Washington and 6 returned to Ethiopia with intent to defraud or avoid service, without indicating efforts made to 7 locate and serve in Ethiopia or anything to suggest the return to Ethiopia or any other action was 8 taken with intent to avoid service) (citing Bruff v. Main, 87 Wn. App. 609, 943 P.2d 295, 297 9 (1997) (denying service by publication where affidavits failed to include facts suggesting 10 defendant’s conduct was undertaken with required intent)). 11 Plaintiff provides declarations supporting the conclusion he engaged in reasonably 12 diligent efforts to serve Mr. Berkholtz by repeatedly attempting personal service at Defendant’s 13 two last known addresses in Washington and by mailing a copy of the summons and complaint 14 to both those addresses and to another last known address in Minnesota, the latter of which is the 15 current residence of his mother/co-defendant. See Dkts. 11-1 & 11-2. The evidence also shows 16 an honest and reasonable effort to find Defendant and diligence through an investigation that 17 included both a thorough search of available databases and public records and a voicemail left at 18 Defendant’s most current phone number. See id. 19 The remaining question is whether Plaintiff posits sufficient facts to support the 20 contention Mr. Berkholtz, with the intent to defraud or avoid service, has either left Washington 21 or concealed himself within. Counsel, by declaration, points to facts showing Plaintiff’s 22 reliability as a source of information concerning both Defendants, including Plaintiff’s 23 identification of Ms. Berkholtz’s prior and current residences and his knowledge Mr. Berkholtz 1 recently attended the University of Washington School of Law and resided at the Adams Lane 2 Apartment. Dkt. 11-1, ¶¶ 3-4, 6-7. Counsel also points to the fact the summons and complaint 3 have been mailed to all three residences known to be associated with Mr. Berkholtz and the 4 successful service of his mother/co-defendant. Id., ¶¶ 7-8; see also Dkt. 11-2, ¶ 2. Plaintiff 5 argues these facts support an inference Mr. Berkholtz either left Washington or is currently 6 concealing himself within for the purpose of avoiding service or continuing the fraud alleged in 7 this lawsuit. 8 The facts supporting an evasion of service are less compelling than those establishing 9 diligent efforts to investigate and serve. However, an affidavit or declaration offered in support 10 of a motion for service by publication “must clearly articulate facts to meet the required 11 conditions, not clearly prove intent to avoid service.” Boes, 122 Wn. App. at 577 (citations 12 omitted; emphasis retained). Nor would proof of such intent necessarily be available. See id. 13 (“Indeed, short of a full fact-finding hearing, a finding on what Mr. Bisiar knew or intended 14 when he left the state is impossible.”) 15 In this case, in addition to the mailing of the summons and complaint to all three last 16 known addresses and a voicemail left on the most current phone number, counsel for Plaintiff 17 served Mr. Berkholtz’s mother and alleged co-conspirator with process. As argued by Plaintiff, 18 it can be reasonably assumed Ms. Berkholtz informed her son of the existence of the lawsuit and 19 inferred from all of these facts that Mr. Berkholtz is aware of the lawsuit and avoiding service. 20 The Court, as such, finds the statutory requirements for service by publication satisfied. 21 CONCLUSION 22 For the reasons stated above, Plaintiff’s Motion for Order Authorizing Service by 23 Publication on Defendant Ric Berkholtz, Dkt. 11, is GRANTED. Plaintiff may serve the 1 summons and complaint upon Mr. Berkholtz according to the requirements set forth in RCW 2 4.28.110 (Manner of publication and form of summons), and is herein ORDERED to direct a 3 copy of Plaintiff’s motion, this Order, and the summons and complaint to the following email 4 address: ricberk@gmail.com. The Clerk is directed to send a copy of this order to Plaintiff. 5 Dated this 14th day of September, 2021. 6 A 7 S. KATE VAUGHAN United States Magistrate Judge 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23